Denationalising Dutch Foreign Fighters: Council of State Annuls Revocation Decisions

As the number of returning foreign fighters increases after the downfall of the Islamic State (IS), the practice of an increasing number of European states to deprive these persons of their citizenship and their right to return continues to be the subject of public discourse and scholarly debate. In the Netherlands, where those who join certain terrorist organisations abroad can lose their citizenship since the enactment of the necessary legislation in March 2017, the practice remains controversial. It has been criticised for being largely symbolic, ineffective, discriminatory, and incompatible with the Netherlands’ obligations under European and international law. While Dutch courts have ruled on decisions taken under the 2017 legislation before, the decision that the Dutch Council of State handed down on 17 April 2019 is particularly significant. The decision adds a new element to critiques that challenge the effectiveness of the Dutch approach.

Sitting in its function as the Netherlands’ administrative court of last instance, the Council of State reviewed two decisions of the Dutch Secretary of State for Justice and Security to revoke the citizenship of two Dutch-Moroccans who allegedly joined the Islamic State and Jabhat al-Nusra as foreign fighters in Syria. The Council annulled both decisions, finding that the Secretary of State had failed to demonstrate, in accordance with the relevant legislative requirements, that the appellants had indeed joined the aforementioned organisations. The Council’s decision has important procedural and substantive implications, which will be considered in turn.

Regarding procedure, the case was brought before the Council of State via the automatic appeal mechanism that applies to decisions that revoke the citizenship of persons who have left the Netherlands as foreign fighters. In essence, the mechanism obliges the decision-maker to appeal against his or her own decision if its addressee does not do so within four weeks after publication. The mechanism seeks to compensate for the fact that, in practice, foreign fighters whose citizenship is revoked will face substantial obstacles in accessing and challenging that decision. In July 2018, however, a lower Dutch court had declared the automatic review mechanism incompatible with the right to fair trial under the EU Charter of Fundamental Rights, as I discussed in an earlier contribution. On 17 April 2019, the Council of State overturned that judgment. Although it upheld the finding of an interference with the right to fair trial, it deemed it justified in light of national security considerations, specifically the effort to prevent the return of foreign fighters to the Netherlands.

The central substantive element of the decision is the fact that the 2017 legislation that underlies decisions to revoke the appellants’ citizenship does not have retroactive effect. Since the legislation entered into force on 1 March 2017, the Council emphasised that a revocation decision may only be based on acts and events that occurred on or after that date. The decisions under review, however, had been based on a judgment by the Dutch criminal courts of 24 March 2013 according to which the appellants had left for Syria, participated in a jihadist training camp there, and engaged in armed jihadist combat until October 2014. While the Secretary of State also asserted there were no indications that the appellants had ceased their engagement in armed combat for IS and Jabhat al-Nusra since, no evidence in support of this claim had been produced. Unsurprisingly, the Council of State succinctly held that the Secretary of State had acted ultra vires, violated the legality in revoking the appellants’ citizenship, annulled the two decisions, and reinstated the appellants’ citizenship.

The implications of the decision reach beyond the specific facts of the case. As stated, the temporal scope of the 2017 legislation is narrow, as it applies only to acts and events that occurred on or after 1 March 2017. However, according to a threat assessment published by the Ministry of Justice and Security in March 2018, there has been a strong decrease in foreign fighters leaving the Netherlands over the last two years, with no known departures since June 2017. The number of ‘new’ foreign fighters to which the legislation applies will be negligible. Of course, this does not preclude its application to foreign fighters who left before March 2017. However, the Council of State’s affirmations have greatly increased the evidentiary burden resting on the decision-maker in such cases: Only evidence relating to facts that arose after the date of enactment is admissible. As the decision of 19 April demonstrates, decisive older information and findings may have to be excluded. Substantial difficulties will arise with regard to those foreign fighters who ceased their involvement with IS following the start of its rapid decline in 2017. It follows that in practice, the denationalisation of more seasoned, ‘old’ foreign fighters who left for Syria at the beginning of the conflict may be more difficult. This would be problematic, because the 2017 legislation was enacted specifically to prevent returns after the defeat of IS.

The serious violations of the legality principle that underlay the two decisions of the Secretary of State reiterate the importance of close judicial review, especially in light of the serious consequences of revocation of citizenship. Ultimately, the heavy evidentiary burden, narrow temporal scope, and close judicial review may well reduce the number of individuals who lose their citizenship under the 2017 legislation, and thereby reduce its effectiveness.